vooke
I believe that the OTP went to sleep and by that let down Kenyans and victims of PEV. There is much that could have been done by the OTP to force the Kenya government to either comply or be obviously non compliant.
What GoK did is to hide behind technicalities you and I know are simple lies. Yet these technicalities gave them the cover to hide under the statutes and not exactly be non cooperative and not exactly cooperative. In other words there was insifficient basis to find them non cooperative. GoK would have challenged any finding of non cooperation in the Appeal's chamber and won.
What OTP could have done was to hire a firm like Kroll or Price WaterHouse and give them the task of finding Uhuru's companies, Land interests and cars and telephone numbers he used. Such things like bank accounts and telephone numbers cannot remain secret because they interact with other phones and bank accounts. With the information, OTP could then frame her requests more specifically.
For example the Lands ministry, Motor vehicle registry, Company Registry claimed they have no mechanism of blind searching and can only search what is already known. In other words, vooke owns a car but you cannot walk to the motor registry and ask to know what cars vooke owns. You need the number to then go and get confirmation. That you know is bullshit!
So GoK adapted the line, tell us the land registration number and we confirm if he owns it or not! OTP could not yet google alone knows quite a bit of what Uhuru and family own. The Ndung'u report has more than enough information. If Uhuru could not give his phone numbers, any embassy could disclose it. They had the number because he called them. If not the people he called could free their records. So here you see total ineptitude that could not be blamed on GoK.
GoK was unwilling to help the OTP. Therefore they only surrendered what they could not hold back:
Additionally, the Chamber observes that nothing in the Revised Request directed the Kenyan Government to confine itself to making enquiries only of the Companies Registry. If ownership or directorship interests could not be obtained through a direct search with that registry, other avenues, which have been repeatedly identified to the Kenyan Government, such as lists of interests of office holders or tax returns, should have been pursued. No adequate explanation has been provided for why this was not done by the Kenyan Government. The Chamber notes that the failure to execute the Company Records request has also impacted on execution of each of the requests for Land Transfer Records, Tax Records, Vehicle Records, Bank Records and Foreign Transaction Records.
Consequently the Court alluded to a capacity problem (which in my opinion is far fetched and non existent if not outrightly untrue) and more relevantly to
"a result of insufficient information having been provided by the Prosecution." This is information the OTP could have easily procured even here and at .choo. The court added rather to the shame of the OTP: "
Chamber again notes the Prosecution's submission that it is not in a position to challenge the explanations offered by the Companies Registry". Of course with a little effort say a secret search of an unrelated matter, an interview with an official of the registry on the workings of the registry, a review of the software used, the OTP could have easily impugned the GoK lie. But that comes with some effort.
There were some ridiculous things that Githu Muigai said that the OTP failed to knock down. The claim that one needs the pin of the accused to search the land records. It turned out that in fact it is the pin of the person searching that is required. But OTP let Muigai repeat and get away with the LIE that they needed Uhuru's pin and they did not know it. Never mind that he has filed it in tax returns, and probably 30 million people know it. The chamber again:
The Kenyan Government has submitted that certain further information is required in order to execute the request issued under this category. In this regard, when the Chamber asked the Kenyan Government about the reasonableness of its submission that a PIN is a necessary prerequisite to conducting relevant searches, the Attorney General provided an explanation that focused on the PIN of the accused. However, upon a cursory search by the Chamber, the publicly available 'Application for official search' form^^^ suggests that the PIN in question may rather be that of the party
seeking the search to be conducted.
56. In either event, the Chamber considers unhelpful the Kenyan Government's repeated representation that the provision of, inter alia, such a PIN by the Prosecution is necessary in order to execute the request. Furthermore, even if the Chamber assumes that the accused's PIN is necessary in order to execute the request, it considers it unreasonable that the Kenyan Government could not identify the PIN of the accused
As noted earlier, the OTP's failures come to the fore and are pointed out by the chamber:
However, the Chamber notes that the Prosecution did not make any substantive submissions regarding the reasonableness or necessity of the additional information sought by the Kenyan Government in the context of the Land Transfer Records. The Chamber considers that again, in the circumstances, it would have been advisable for the Prosecution to do so.
Again here you see that when GoK is at the brink of being found culpable, the oTP lends it a helping hand by failing to deliver the killer blow or coup de grace. The judges observe that the OTP could have challenged GoK to check the payment of stamp duty which would have disclosed land transactions by the accused. Like I noted earlier any lawyer resident in Kenya could have supplied this information without going outside his office. So the chamber found it cannot entirely blame GoK since the OTP cannot challenge the lies of the Lands Registry.
On taxes, Githu Muigai LIED again:
that the revenue authority does not retain the tax return forms submitted by tax payers - appeared to base itself on a letter from the Kenyan Revenue Authority, which, in the view of the Chamber, is not necessarily clear on this point. . A Nairobi lawyer could easily disapprove that. Plus it is not the tax return but the outcome of the tax returns that matter. OTP did not challenge that lie and hence the chamber while doubting it had to accept it by default. Had the OTP objected, she could have had a ready ear in the judges:
the Chamber observes that it would be unusual for original tax return forms to be destroyed within a short timeframe from the date of their receipt; as such documents may be required for evidentiary purposes in the event of subsequent disputes or allegations of fraud in relation to a taxpayer. Even if it is the case that tax return forms from the relevant years have now been destroyed, the Chamber notes that providing a clear response to that effect in a timely manner would have enabled the Prosecution to either challenge the position or consider alternative avenues. Additionally, in the absence of any indication as to what steps, if any, might have been taken to identify beneficial interests, the Chamber considers inadequate the mere representation that no beneficial interests of the accused have been identified by the authority.
On taxes therefore, OTP scored by default. The chamber found GoK uncooperative.
On Vehicles : Githu only provided details of vehicles provided by Uhuru's defence. OTP did not contest the list and therefore the judges are not sure whether the list is comprehensive. Again an opportunity to fry GoK was let go. Strangely, OTP expressed satisfaction with the list provided. Talk of ineptitude!
Uhuru's bank records were partially hidden. Here, the OTP made clear efforts to pursue GoK and it paid off with an adverse finding by the court.
On Telephone Records: Adverse finding against GoK
I need not summarize the ruling but you can see from this paragraph under "Overall Assessment" the underlying reasoning:
In an overall consideration of these eight specific categories of requested material, the Chamber finds that the explanations provided by the Kenyan Government for non provision of materials, were, in certain cases, framed in an unhelpful manner that did not respond clearly to queries raised. Moreover, it is apparent that - save in the case of Foreign Transaction Records - there has been a complete failure to pursue alternative sources of information. Despite the open language of the Revised Request, which provided the Kenyan Government with a degree of flexibility in how it could be implemented, and the provision of specific suggestions of avenues of potential enquiry from the Prosecution, the Kenyan Government appears to have persisted in a narrow approach which simply repeated the alleged 'impossibility' of one particular method of execution.
( I will continue later)
Topic: Omorlo and MoonKi, on ICC (Read 15116 times)